The Garden State Says "Hands Off My Cell Phone Data"
By Behnam Dayanim
Good for New Jersey - what about the rest of the country?
Well, the New Jersey court expressly noted that its state constitution "provides stronger protections against unreasonable searches and seizures than the Fourth Amendment," and, perhaps not surprisingly, federal courts have divided on the issue. (No other state supreme court has ruled on the question.)
Some courts have found no reasonable expectation of privacy arising out of a cell phone. In the words of one court, "the individual has chosen to carry a device and to permit transmission of its information to a third party, the carrier." In re Application of the United States of America for an Order for Disclosure of Telecommunications Records and Authorizing the Use of a Pen Register and Trap and Trace, 405 F. Supp. 2d 435, 449 (SDNY 2010).
This is not a surprising view. Indeed, it dates back to the Supreme Court's ruling in 1979 that "pen registers," which track telephone numbers dialed, did not implicate Fourth Amendment concerns. As the Court then observed,
we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies for the purposes of checking billing operations, detecting fraud and preventing violations of law.
Smith v. Maryland, 442 U.S. 735, 742 (1979) (internal quotation and citation omitted).
That holding in Smith established a basic dichotomy between "content" of communications and other, ancillary data - a dichotomy that since has become embedded in a number of federal statutes. See, e.g., Electronic Communications Privacy Act, 18 U.S.C. § 2511 (distinguishing between content and non-content); Pen Register Statute, 18 U.S.C. § 3121(c) (allowing government to install pen register so long as it does not capture content); PATRIOT Act, 50 U.S.C. § 1861 (business records provision, allowing collection of these types of data).
It also is what allows the National Security Agency to collect all of our telephone meta-data. The question that the New Jersey decision presents is whether that approach remains appropriate or whether the evolution of technology - which now allows for far more comprehensive data collection and analysis - should trigger a re-examination.
As the court stated:
[D]isclosure of cell-phone location information, which cell-phone users must provide to receive service, can reveal a great deal of personal information about an individual. With increasing accuracy, cell phones can now trace our daily movements and disclose not only where individuals are located at a point in time but also which shops, doctors, religious services, and political events they go to, and with whom they choose to associate. Yet people do not buy cell phones to serve as tracking devices or reasonably expect them to be used by the government in that way. We therefore find that individuals have a reasonable expectation of privacy in the location of their cell phones under the State Constitution.
State v. Earls, ___ A.3d ___ (2013), 2013 WL 3744221.
Of course, the carrier possesses all this information. So why not the government? The answer in New Jersey ultimately was simple:
[C]ell-phone users have no choice but to reveal certain information to their cellular provider. That is not a voluntary disclosure in a typical sense; it can only be avoided at the price of not using a cell phone.
When people make disclosures to phone companies and other providers to use their services, they are not promoting the release of personal information to others.
In other words, in New Jersey, the fact that I disclose my information to one person for purposes of receiving a service does not strip that information from constitutional protection. At the federal level, that initial disclosure can waive subsequent constitutional protection.
In a society that is ever more dependent on technology and on technology providers to service all aspects of life, that distinction - which had quite limited implications 50 years ago - seems far more significant now. Which view of privacy ultimately prevails will impact profoundly the degree of privacy that Americans can expect.
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